State v. Cordova

2023 UT App 99THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
RANDY STEVEN CORDOVA,
Appellant.
Opinion
No. 20230303-CA
Filed August 31, 2023
Second District Court, Ogden Department
The Honorable Joseph M. Bean
No. 221903577
Emily Adams, Freyja Johnson, and Melissa Jo
Townsend, Attorneys for Appellant
Sean D. Reyes and Tanner R. Hafen,
Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Randy Steven Cordova appeals the district court’s denial
of his request to be released pending trial on a felony charge of
distribution of a controlled substance. The court denied Cordova
bail after finding that substantial evidence supported the charge,
that Cordova’s release would pose a danger to the community,
and that he was a flight risk. Cordova argues the court erred in
concluding that clear and convincing evidence supported its
danger to the community and flight risk findings. We disagree
and affirm.
State v. Cordova
BACKGROUND 1 0F
¶2 In July 2022, a confidential informant told police that
Cordova was selling fentanyl pills and methamphetamine. An
undercover police officer was contacted by Cordova, who agreed
to sell some pills to the officer. The two met up at a location chosen
by Cordova, and Cordova sold the officer twenty “M30” pills
suspected of containing fentanyl. The officer video recorded the
sale.
¶3 The State charged Cordova with distribution of a
controlled substance, a second-degree felony. At the time the
charge was filed, the State filed a motion for pretrial detention
requesting that Cordova be held without bail because “there is
substantial evidence supporting the charge and clear and
convincing evidence that [Cordova] would constitute a
substantial danger to any other individual or to the community or
is likely to flee the jurisdiction of the court.”
¶4 After Cordova was arrested, he appeared before the
district court on the felony distribution charge. The court noted
that Cordova had other pending misdemeanor cases and arrest
warrants and that he had been charged with three counts of
possession of a controlled substance as well as two counts of
possession of drug paraphernalia. At this hearing, Cordova’s
attorney told the court that Cordova “wishes to be released on
bail” and that he had explained to Cordova that “for someone
with warrants, it’s kind of hard.” The court denied Cordova’s
request for release and set the matter for a detention hearing.
¶5 At the detention hearing a few weeks later, Cordova
disputed that he was selling fentanyl, and he argued that he
should be afforded pretrial release because the distribution charge
was his only felony charge, the other charges were misdemeanors,
1. A criminal defendant retains the presumption of innocence that
attaches prior to conviction.
20230303-CA 2 2023 UT App 99State v. Cordova
and he had only failed to appear before the court in a previous
pretrial release because “he was dirty, and he panicked.” As set
forth in its motion for pretrial detention, the State argued that
Cordova “had been previously granted a pretrial services release
then failed to appear, at which time he picked up this newest case
wherein he sold 20 fentanyl pills to an undercover strike force
agent . . . and that he would be a danger to the community, and
his conduct and failure to appear in his misdemeanor cases shows
that he’s also a . . . flight risk.” The district court agreed with the
State and denied bail. The court found that somebody selling and
distributing drugs is “absolutely . . . a danger to the community.”
In addition, the court found that, with his history of not reporting
to pretrial services, Cordova was “also a danger of flight.”
Cordova appeals this ruling.
ISSUE AND STANDARD OF REVIEW
¶6 Cordova asserts that the district court erred in denying his
motion for pretrial release or bail, specifically that the court erred
in concluding that he is a danger to the community and that he is
a flight risk. A district court’s determination that there is clear and
convincing evidence that the defendant is a substantial danger or
likely to flee if released is reviewed deferentially, and this court
will reverse that determination only if it is clearly erroneous.
Randolph v. State, 2022 UT 34, ¶ 49, 515 P.3d 444.
ANALYSIS
¶7 In Utah, the right to bail is governed by the Bail Provision
of the Utah Constitution and the Bail Statute enacted by the Utah
Legislature. See Utah Const. art. I, § 8; Utah Code § 77-20-201.
Under the Bail Provision, “[a]ll persons charged with a crime shall
be bailable” except when, among other exceptions, “the court
finds by clear and convincing evidence that the person would
constitute a substantial danger to any other person or to the
20230303-CA 3 2023 UT App 99State v. Cordova
community or is likely to flee the jurisdiction of the court if
released on bail.” Utah Const. art. I, § 8(1)(c). Similarly, under the
Bail Statute, a defendant charged with a felony can be detained if
a district court finds that there is “substantial evidence to support
the charge” and there is “clear and convincing evidence” that “the
individual would constitute a substantial danger to any other
individual or to the community” or “is likely to flee the
jurisdiction of the court” if released on bail. Utah Code § 77-20-
201(1)(c). The clear and convincing evidence standard “implies
something more than . . . a preponderance, or greater weight, of
the evidence; and something less than proof beyond a reasonable
doubt.” Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶ 24, 270
P.3d 430 (quotation simplified). “Courts that assess these
comparative degrees of certainty have characterized the clear and
convincing standard as the existence of facts that make a
conclusion very highly probable.” Id. (quotation simplified).
¶8 Here, Cordova does not contest that substantial evidence
supports his felony charge in this case, but does contend that the
district court’s conclusions—that an individual distributing drugs
is a danger to the community and that his failure to appear in a
prior misdemeanor case suggests he is a flight risk—are clearly
erroneous and should be reversed. 2 More specifically, in regard to
1F
2. The district court found by clear and convincing evidence that
Cordova was both a substantial danger and likely to flee if
released. Because the Bail Statute uses the disjunctive “or,” denial
of bail can rest on a finding of either danger or flight risk. If we
find the district court correctly evaluated one factor and affirm,
we need not address the other factor. See Randolph v. State, 2022
UT 34, ¶ 81, 515 P.3d 444. There may be some merit to Cordova’s
argument that a solitary failure to appear is not clear and
convincing evidence that he would flee the jurisdiction of the
court. Moreover, failing to appear at one hearing is not similar to
leaving the state to avoid facing charges, having substantial ties
(continued…)
20230303-CA 4 2023 UT App 99State v. Cordova
the danger to the community factor, Cordova argues (1) that the
crime of drug distribution is not comparable to a capital offense
or an offense committed while on probation or parole, which are
the other non-bailable exclusions in the Utah Constitution; (2) that
selling fentanyl to an undercover police officer does not endanger
the community at large; and (3) that the determination of whether
an individual presents a danger to the community must not be
based on general notions about the crime itself but rather should
be based on an individual assessment of the person. We address
each argument in turn.
¶9 First, Cordova contends that distribution of a controlled
substance is not comparable to a capital offense or to felonies
committed while on parole, which are specifically excluded from
the constitutional right to bail. See Utah Const. art. I, § 8(1)(a)–(b)
(“All persons charged with a crime shall be bailable except:
(a) persons charged with a capital offense . . . or (b) persons
charged with a felony while on probation or parole . . . .”). If the
Bail Provision ended after subsection (b), Cordova might have a
point that the bail exceptions create classifications and the “capital
offense exception accentuates the gravity of the nature of the
offense in order to sustain a denial of a fundamental right.” Scott
v. Ryan, 548 P.2d 235, 236 (Utah 1976). But as explained by our
supreme court in Randolph v. State, 2022 UT 34, 515 P.3d 444, Utah
citizens approved an amendment to the state constitution in 1988
that expanded the exceptions to a defendant’s right to bail to
include “any other crime, designated by statute as one for which
bail may be denied.” Id. ¶ 58 (quoting Utah Const. art. I, § 8(1)(c));
see also State v. Kastanis, 848 P.2d 673, 675 (Utah 1993) (stating that
the focus of the constitutional amendment in 1988 “was on that
outside of Utah, and telling others of plans to leave Utah and go
to another state. See id. ¶ 85. No such evidence was presented to
the district court here, and a decision to deny bail solely based on
Cordova’s single failure to appear because he was “dirty” and
“panicked” may have been clearly erroneous.
20230303-CA 5 2023 UT App 99State v. Cordova
portion of the provision which permits denial of bail to persons
charged with felonies of a lesser degree than capital crimes”).
Thus, this constitutional provision authorizes our legislature to
determine which additional crimes should be categorized as non-
bailable. 3 And the Utah Legislature has determined that all felony
2F
charges are non-bailable so long as there is substantial evidence
to support the charge and the individual constitutes a substantial
danger to any individual or to the community or is likely to flee.
See Utah Code § 77-20-201(1)(c). Thus, we agree with the State that
the focus here is not the relative seriousness of Cordova’s felony
charge; it is whether the district court clearly erred in finding that
Cordova’s release would present a substantial danger to any
individual or to the community.
¶10 This leads to Cordova’s second challenge, that selling
drugs to an undercover police officer does not pose a threat to the
community because only the use of those distributed drugs may
endanger an individual or the community. Here, we agree with
the district court and other courts around the country, see, e.g.,
United States v. Stone, 608 F.3d 939, 947 n.6 (6th Cir. 2010); United
States v. Hare, 873 F.2d 796, 798 (5th Cir. 1989), that distributing
3. To be sure, while the right to bail is constitutionally guaranteed,
when the government proves by clear and
convincing evidence that an arrestee presents an
identified and articulable threat to an individual or
the community, we believe that, consistent with the
Due Process Clause [of the United States
Constitution], a court may disable the arrestee from
executing that threat. Under these circumstances,
we cannot categorically state that pretrial detention
offends some principle of justice so rooted in the
traditions and conscience of our people as to be
ranked as fundamental.
United States v. Salerno, 481 U.S. 739, 751 (1987) (quotation
simplified).
20230303-CA 6 2023 UT App 99State v. Cordova
drugs “absolutely is a danger to the community.” It is common
knowledge that fentanyl is one of the deadliest narcotics being
sold and distributed in our communities. Merely two milligrams
of the substance is a lethal dose for most people. See United States
Drug Enforcement Administration, Facts About Fentanyl,
https://www.dea.gov/resources/facts-about-fentanyl [https://per
ma.cc/V3LM-9K49]. Moreover, the National Institute on Drug
Abuse has observed that “[s]ome drug dealers are mixing
fentanyl with other drugs, such as heroin, cocaine,
methamphetamine, and MDMA. . . . This is especially risky when
people taking drugs don’t realize they might contain fentanyl as
a cheap but dangerous additive,” making overdose more likely.
See National Institutes of Health, Fentanyl DrugFacts,
https://www.drugabuse.gov/publications/drugfacts/fentanyl [htt
ps://perma.cc/BG6N-84MW]. 4 The information before the district
3F
court included a confidential informant’s report that Cordova was
selling fentanyl and methamphetamine in multiple northern Utah
counties. And when the sale to the undercover officer occurred,
Cordova was on pretrial release for another (misdemeanor) drug
possession offense. This evidence demonstrates that Cordova is
likely to continue to sell fentanyl in the community if released and
provides clear and convincing support for the court’s conclusion.
¶11 And finally, Cordova challenges the district court’s safety
determination as a generalized assessment that drug offenses are
dangerous rather than an individualized assessment that
Cordova would constitute a substantial danger to any other
individual or to the community. While the mere fact of an arrest
for a particular crime is not sufficient evidence warranting
detention, the determination of whether a criminal defendant
4. We take judicial notice of the facts from these publicly available
government websites because they are not subject to reasonable
dispute and can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned. See
Utah R. Evid. 201.
20230303-CA 7 2023 UT App 99State v. Cordova
poses a safety risk cannot be divorced from the severity of the
charged offense. The plain language of the Bail Provision
indicates that the court must consider the evidence of a
defendant’s alleged crime—along with other relevant evidence
and an individualized assessment of the defendant’s
circumstances—in deciding whether a person should be detained.
That is what the district court did here. The court assessed the
charges filed in this case (the supporting evidence for which
Cordova does not contest) and considered Cordova’s individual
circumstances, such as the multiple other pending charges and
Cordova’s alleged continued distribution while on pretrial
release. Accordingly, the district court did not clearly err in
denying Cordova’s request to be released.
CONCLUSION
¶12 The district court did not err in ruling that clear and
convincing evidence existed that Cordova constituted a
substantial danger to any individual or to the community and
therefore did not err in denying Cordova bail.
¶13 Affirmed.
20230303-CA 8 2023 UT App 99